S.R. Anantharamaiah and Others vs S.K. Raju and Others

Ravi V. Malimath, J.—The case of the plaintiffs is that the suit schedule property to an extent of 120 x 10 yards i.e., 360 x 30 ft., situated at Salagama Village, Hassan Taluk, was acquired by Shanboga Ramanna in an auction. It is submitted at the Bar that the same was acquired on 24/10/1935. That Shanboga Ramanna was also in possession and enjoyment of the property adjacent to the said property, to a total extent of 360 x 72 ft. All the records stands in his name. It is within the Grama Panchayath and there is a flourmill since the year 1995. No pahani was issued with respect to the said property. In the year 1935, the property which was granted in favour of the defendants to an extent of 120 x 24 ft., was cancelled and confirmed in the name of the plaintiffs. Accordingly, plaintiffs were in possession of the property to an extent of 360 x 72 ft. Defendants have no right or title in respect of the said property, as it is not a government property. The Assistant Commissioner has passed an order intending to allot a portion of the suit schedule property to others. The order was challenged in R.A. No. 5/03-04 before the Deputy Commissioner. The same was rejected. The said rejection order was challenged in W.P. No. 14552/07 which was pending on the date of filing of the suit. Hence the instant suit was filed seeking for a declaration that the plaintiffs are the absolute owners in possession and enjoyment of the suit schedule property based on adverse possession and consequential relief of permanent injunction. On service of notices, defendants entered appearance and denied the suit claim that the plaintiffs are in possession of the property to an extent of 360 x 72 ft. They have denied the claim that the plaintiffs are in enjoyment of the said property for the last 150 years.

Based on the pleadings, the Trial Court framed the following issues and additional issue:

"1) Whether the plaintiffs prove that they are the owners of the suit schedule property?

2) Whether the plaintiffs prove that they are in possession as on the date of filing of the suit?

3) Whether the plaintiffs prove that defendants illegally interfering into the peaceful possession and enjoyment of the suit schedule property?

4) Whether the plaintiffs are entitled for the relief claimed?

5) What order or decree?

Additional Issue:

Whether the plaintiffs are perfected their title and possession over the suit schedule property by virtue of adverse to the real owner?" All the issues were held in the negative and the suit was dismissed. Aggrieved by the same, plaintiffs preferred an appeal which was also rejected. Hence the present second appeal.

Learned counsel for the appellants/plaintiffs contend that the courts below committed an error in dismissing the suit. That the material on record would show that the plaintiffs are in possession of the suit schedule property for the last 150 years. That subsequently, the writ petition has been disposed off directing the proceedings before the Assistant Commissioner, be dropped. It was quashed on the ground that the Assistant Commissioner had no jurisdiction to pass the order and that it was the Taluk Panchayat alone, that had jurisdiction. Hence it is clear that until and unless appropriate action is initiated in accordance with law, the title of the plaintiffs require to be confirmed and injunction be granted.

On hearing learned counsel, I''m of the considered view that there is no merit in this appeal. The suit has been filed seeking for a declaration based on adverse possession. It is needless to state that no plaintiff could maintain a suit for declaration or injunction based on the principles of adverse possession. Adverse possession can only be acted upon as a shield and not as a sword. The Hon''ble Supreme Court in the case of Gurudwara Sahib Vs. Gram Panchayat Village Sirthala and Another, has held as follows:

"8. There cannot be any quarrel to this extent that the judgments of the courts below are correct and without any blemish. Even if the plaintiff is found to be in adverse possession, it cannot seek a declaration to the effect that such adverse possession has matured into ownership. Only if proceedings are filed against the appellant and the appellant is arrayed as defendant that it can use this adverse possession as a shield/defence." 5. Following the said judgment and the principles of law that no suit would lie based on the adverse possession, the Trial Court was justified in rejecting the suit.

So far as permanent injunction restraining the defendants is concerned, the Trial Court was of the view that not a single word has been attributed to the role of the defendants in the suit. That even though the plaintiffs claim to be the owner in possession, there is no allegation against the defendants with regard to their disturbance of the plaintiffs. Hence it was held, the plaintiffs have failed to show that there was any disturbance by the defendants. Hence on this ground, decree for permanent injunction was declined. On considering the contentions and the reasons assigned by both the courts below, I''m of the considered view that no suit is maintainable based on adverse possession and the fact that when there is no interference by the defendants, no injunction could be granted to the plaintiffs. I do not find any error committed by both the courts below that calls for interference. Even otherwise no substantial question of law arises for consideration in this appeal. Consequently the appeal, being devoid of merit, is dismissed.